ABA LawInfoInformation on the topics that concern you most2016-08-25T23:11:55Zhttp://www.abalawinfo.org/feed/atom/WordPressadministratorhttp://www.abalawinfo.org/?p=6112016-08-25T23:11:55Z2016-08-25T23:11:55ZThe law forbids businesses from including baseless statements or assertions in their advertisements. According to the Federal Trade Commission Act (FTCA), a business must ensure that their representations are not misleading or unfair, and the entity must have data that supports all claims. Evidence may, for example, be substantiated based by surveys, expert testimony, or scientific studies and tests.

A “deceptive” advertisement, as described in the FTC’s “Deception Policy Statement” is one that suggests or omits a critical fact in an attempt to mislead customers. Similarly, an “unfair” advertisement is categorized as one using a deceptive practice that may result, or has resulted in, significant customer harm. Typically, the harm caused could not be avoided by the customer, and minimal benefit is experienced by any of the clientele engaging in the same practice.

The Federal Trade Commission (FTC) is charged with investigating national ads to determine whether they are fraudulent. Local advertising, on the other hand, is usually the domain of agencies of the county, state, or city, such as the Better Business Bureau (BBB). In both cases, certain criteria are used to evaluate the “words, phrases, and pictures” within the endorsement to identify potential deception. Deception is characterized as that which a “reasonable consumer” would falsely believe to be true. All investigations are confidential until legal action is commenced or a claim is settled.

There are several remedies available for deceptive claims, including the issuance of a cease and desist order. Such an order prohibits a business from continuing to disseminate misleading or dishonest advertisements. A cease and desist order is often combined with substantial fines or with a requirement that the offending company authenticate any and all future ads. Other penalties may compel a business to notify its customers of the false ads, or to provide refunds for falsely advertised purchases.

Unfair competition may also come into play in cases of deceptive advertising. Companies that feel they have been unfairly treated by competitors may have legal recourse. The National Advertising Division (NAD) is associated with the BBB, and an aggrieved party may file a cause of action against a competitor through NAD. Depending on the specific circumstances, a business may have the legal authority to sue its rival for posting deceptive ads under the Lanham (Trademark) Act. Individuals who feel their businesses have been harmed by the false or deceptive advertising practices of a competitor may have remedies available to them. A reputable business attorney is in the best position to give advice about which course of action should be pursued.

]]>administratorhttp://www.abalawinfo.org/?p=6082016-08-25T23:10:11Z2016-08-25T23:10:11ZThere are many benefits to a revocable living trust that are not available in a will. An individual can choose to have one or both, and an attorney can best clarify the advantages of each. If the person engaged in planning his or her estate wants to retain the ability to change or rescind the document, the living trust is probably the best option since it is revocable.

The document is called a “living” trust because it is applicable throughout one’s lifetime. Another individual or entity, such as a bank, can be appointed as trustee to manage and protect assets and to distribute assets to beneficiaries upon one’s death.

A living trust will also protect assets if and when a person becomes sick or disabled. The designated trustee will hold “legal title” of the assets in the trust. If an individual wants to maintain full control over his or her property, he or she may also choose to remain the holder of the title as trustee.

It should be noted, however, that the revocable power that comes with the trust may involve taxation. Usually, a trust is considered a part of the decedent’s estate, and therefore, an estate tax applies. One cannot escape liability via a trust because the assets are still subject to debts upon death. On the upside, the trust may not need to go through probate, which could save months of time and attorneys’ fees.

The revocable living trust is contrary to the irrevocable living trust, in that the latter cannot be rescinded or altered during one’s lifetime. It does, however, avoid the tax consequences of a revocable trust. An attorney can explain the intricacies of other protections an irrevocable living trust provides.

Anyone who wants to keep certain information or assets private, will likely want to create a living trust. A trust is not normally made public, whereas a will is put into the public record once it passes through probate. Consulting with an attorney can help determine the best methods to ensure protection of assets in individual cases.

]]>administratorhttp://www.abalawinfo.org/?p=6052016-08-25T23:08:29Z2016-08-25T23:08:29ZSo, you have a will, but is it valid? A will can be contested for a multitude of reasons after it is presented to a probate court. It is in your best interest to have an attorney draft the will to prevent any ambiguity in the provisions of the document that others could dispute later.

A will may be targeted on grounds of fraud, mental incapacity, validity, duress, or undue influence. These objections can draw out the probate process and make it very time consuming and expensive. More importantly, an attorney can help ensure that your property is put into the right hands, rather than distributed to unfamiliar people or organizations that you did not intend to provide for.

At the time you executed the will, you must have been mentally competent, or of “sound mind.” A court will inquire as to whether you had full awareness of what you were doing. There will also be an inquiry into your understanding and knowledge of the assets in your name. If, at the moment you executed the will, you were pressured or influenced by another individual to sign the document, it may be invalidated.

If the document was signed under duress or undue influence, the provisions are likely to be against your intentions or requests. Moreover, if you are trying to nullify a will on your own behalf, you are likely to need an attorney because it is very difficult and complicated to demonstrate the existence of duress, fraud, or undue influence. If drafting a new will, counsel can ensure that your document abides by all of the validity requirements, so the will’s provisions can successfully carry out your intentions after your death.

For example, the will creator or “testator,” is usually required to sign the document before several witnesses who are over the age of eighteen, during a certain period of time. A will or a certain bequest to a person could be deemed void if the beneficiary was also a witness. In your state, you may be able to execute a “self-proving affidavit,” which may do away with some of the requirements in order to establish a valid will. The testator should also designate a person to execute the document. Consult your attorney to ensure that your will comports with your state’s particular laws and is sustainable against any future contests.

]]>administratorhttp://www.abalawinfo.org/?p=6022016-08-25T23:07:05Z2016-08-25T23:07:05ZWhen an individual is wronged or injured by a federal agency or government employee, that person may have an actionable negligence claim against the government. It is necessary to seek legal counsel to determine whether or not the government is immune in this particular case or whether a legitimate claim can be brought under the Federal Tort Claims Act (FTCA).

Pursuant to the FTCA, if the incident arose from an act by a federal employee who was “acting in the scope of” his or her employment, an action may be brought. Claims against the government, however, are often complex, burdened with various restrictions. It is always advisable to consult with an attorney in such cases, rather than attempting to bring a lawsuit independently.

The FTCA does not extend liability to every individual associated with the government, and claims are only permitted under certain circumstances. For example, independent contractors employed by the government are only included under the act in exceptional cases. Most often only a claim of negligence can be brought, rather than a complaint for deliberate wrongdoing. Furthermore, the claim must be grounded upon, and cannot conflict with, state law.

There are several steps to be taken in filing a lawsuit against the government. First and foremost, within two years from the date of the incident, an administrative claim must be filed with the agency that allegedly caused harm. In order for the claim to be considered and investigated, a form has to be filed which includes all relevant facts and requested damages. The claim for damages is limited; punitive damages are not typically an option.

If and when the agency discards the claim, in whole or in part, a suit may be filed within six months of the date on the decision letter. In most cases, all administrative remedies must be fully exhausted before seeking legal action. If the agency does not respond, however, the complainant may be permitted to proceed with the lawsuit. An attorney can best advise whether an action can be filed, whether the government has any plausible defense, and whether it is in the client’s best interest to settle the case.

]]>administratorhttp://www.abalawinfo.org/?p=5992016-08-25T23:04:43Z2016-08-25T23:04:43ZAuthors often want to understand the eligibility of their writings for copyright protection. Legal copyright registration provides the copyright holder with a collection of special rights. Under the U.S. Copyright Act, a rightful owner maintains the “exclusive right to reproduce, distribute, perform, display, license, and . . . prepare derivative works” founded on his or her creations. However, these “exclusive” rights are curtailed by the “fair use” doctrine, which typically allows others to use your work legally for certain limited purposes, such as “criticism, comment, news reporting, teaching, scholarship, or research.”

A court makes the final determination about whether a particular use of a registered work comes within the “fair use” doctrine. Factors that a court may use to verify whether a particular use is permissible under the statute may include “the purpose and character of the use.” For instance, if a third-party utilizes your registered work for an educational and nonprofit purpose, the use is unlikely to be categorized as copyright infringement.

The court may also look at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” It is likely to be copyright infringement if a large portion of the work has been used, where the user is effectively usurping the work as his or her own. The court may also analyze “the effect of the use upon the potential market for, or value of, the copyrighted work.” Furthermore, if a third party did not publish the work in question, the action may still constitute fair use.

Copyright protection spans “architectural design, software, the graphic arts, motion pictures, and sound recordings.” Consulting with an intellectual property lawyer will clarify whether a particular type of work qualifies for legal protection. It is important to remember that legal action may not be brought until work is registered, even if blatant copyright infringement transpires.

Qualified intellectual property lawyers are dedicated to keeping their clients in compliance with the Copyright Office and protecting them from being subjected to the civil fines that may result from improper actions. Engaging the services of a licensed intellectual property lawyer will not only protect original creations but provide necessary advice on whatever legal recourse is available.

]]>administratorhttp://www.abalawinfo.org/?p=5962016-08-25T23:03:09Z2016-08-25T23:03:09ZCourts typically disfavor “covenants not to compete” or “non-compete agreements.” Therefore, the terms and provisions of these contracts must not be overly restrictive of the employee. In order for a non-compete to be upheld, the document must “be reasonable in scope, geography, and time.” It cannot last for years on end, or prevent the employee from working anywhere in the entire state. Likewise, an employer cannot prohibit an employee from working in a large variety of industries, especially if the restriction includes industries wholly unrelated to the employer’s line of work.

Two other elements are analyzed by a court to determine the validity of a non-compete agreement: (1) there must be mutual consideration between both the employer and employee at the moment the contract is signed and (2) the non-competition agreement must protect “a legitimate business interest of the employer.” Preventing a former employee from working for an employer’s business rival, or preventing disclosure of trade secrets or personally identifiable information of important clientele, are typically considered justifiable business interests.

Non-compete agreements are generally implemented to protect a company’s most important assets: its reputation and its confidential information. However, the terms protecting these assets cannot be overly broad or vague. Thus, in evaluating the “reasonableness” of a non-competition agreement, the court will conduct a “balancing test.” This is a comparison of the employer’s need to protect its “business interests” with the “burden that enforcement of the agreement would place on the employee.”

The validity of non-compete agreements is decided on a case-by-case basis. The court will consider circumstances such as the length of time certain information will be kept confidential, and the company’s reasons for limiting the employee’s job search to a geographical area. If the court finds that the agreement serves a valid interest and does not exceed the range necessary to protect that interest, the entire agreement may be upheld.

The court also has the option of doing away with overly intrusive terms in a non-compete, rather than invalidating the agreement entirely. In cases in which a non-compete is perceived by the court as punitive, unduly restricting an employee from obtaining employment, the agreement will not be upheld. A licensed attorney who specializes in employment law will be able to gauge the likelihood that a particular non-compete agreement will be enforceable.

]]>administratorhttp://www.abalawinfo.org/?p=5932016-08-25T23:01:19Z2016-08-25T23:01:19ZThere is a widespread misconception that verbal contracts are unenforceable. Nevertheless, a contract made orally with another party, without embodying the particular terms in a signed writing, can still be valid and binding. Even so, any disagreement concerning the deal may pose multiple problems for both parties. In order for the court to give a verbal contract legal effect, the terms of the deal will have to be demonstrated. This could involve pricey litigation and an extensive discovery process. Therefore, it is advisable to have an attorney draft any contractual agreement.

Moreover, according to the Statute of Frauds, there are certain contracts that must be in writing in order to be legally binding. This may include contracts for the sale of land or real estate, surety agreements, in which one person guarantees to take over another’s contractual obligations, and service agreements that take over one year to complete. Other agreements that must be written to be legally binding may include agreements “made in the consideration of marriage,” or those made for the sale of goods valued at $500 or more. If the requirements for contractual validity are not met, either party runs the risk of the other party rescinding the contract by declaring it void.

The Statute of Frauds not only aims to prevent deception or fraud; it requires precise terms to be set in writing for a contract to be valid. The Statute of Frauds typically requires the document to include a description of the “subject matter” of the agreement, the main stipulations to the deal, and the signatures of the parties. Nevertheless, these requirements may vary with the sale of goods under the Uniform Commercial Code, where a signature by the “party to be charged” may be sufficient. For a sale of goods, the terms typically should include the price and quantity of the goods.

Sometimes, if the contract is unenforceable under the Statute of Frauds, it may be saved if one party suffered by relying on the contract and if the injured party can prove this reliance in court. Likewise, an exception may exist if “specially manufactured goods” were provided under the contract or one party “partially performed” what was required by the agreement. The outcome may also vary if two merchants were the contracting parties. Seek advice from a licensed business law and contract attorney to evaluate agreements and determine whether they are legally enforceable.

]]>administratorhttp://www.abalawinfo.org/?p=5902016-08-25T20:02:08Z2016-08-25T20:02:08ZOne of the purposes behind memorializing an agreement in a written document is to ensure that the parties to the contract do not recant what they originally agreed upon. Often, parties may dispute contractual terms if contracts are not working out in their favor or are resulting in negative or unanticipated consequences.

When a document is drafted by an attorney, parties usually feel more confident and secure about the transaction. A legal document will help prevent any future deviations from its original intent because all aspects of the matter have been stipulated in the final written document.

If there is any disagreement regarding the written contract, the court’s consideration of evidence is limited. For example, the courts may look into the prior deals between the parties and check out industry practices as a means of comparison. However, it is typically prohibited to admit evidence of prior agreements or negotiations of the parties on the same contractual matter at issue.

The court may also inquire as to whether the agreement is partially or completely integrated. A fully integrated document is one intended by the parties to represent all of the terms to the exclusion of any prior writings or oral agreements. If the agreement is fully integrated, then all other information will likely be excluded. On the other hand, if the document is only partially integrated, the court may take note of circumstantial evidence if such evidence does not contradict the agreement.

“Parol evidence” is generally oral evidence. It is beneficial and may be admitted under certain circumstances after the parties agree to a final written agreement. For example, if the parties to the contract made a mistake, such as omitting or mistakenly listing a term, parol evidence may be considered. In that case, the option of bringing in subsequent agreements in limited circumstances may be available.

Parol evidence also comes into play when the writing of the document is unclear or if there is a dispute as to the meaning of certain terms within the contract. Finally, new evidence is admissible if there is illegality or fraud relating to the contract. Conferring with a contract attorney will help to clarify how parol evidence rule may affect current and future dealings.

]]>administratorhttp://www.abalawinfo.org/?p=5872016-08-25T20:00:39Z2016-08-25T20:00:39ZMany business owners wonder which type of Intellectual Property protection is the best fit for their business purposes? A “trade secret” is intellectual property that is kept private in order to maintain its financial value in the marketplace. Examples of trade secrets include: “a formula, pattern, compilation, program, device, method, technique or process.”

Alternatively, a “patent” generally protects a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Thus, a creation may receive protection under either patent or trademark law, but not both, due to varying disclosure rules. Also, there are several types of patents available, including utility, design, and plant patents.

Companies that make it a priority to preserve their trade secrets will go to great lengths to prevent others from misusing or misappropriating their critical information. It is likely that a business will seek out the powers of the court system in order to protect the financially viable benefit that derives from their trade secrets. In cases where trade secrets have been violated, courts may order the culpable party to preserve confidentiality or pay expenses, which often include any damages a business sustains as a result of the misuse of a trade secret.

However, trade secret protection is not without its limits. If a trade secret becomes publically known through an authorized admission, protection may be completely lost. Additionally, trade secret protection does not protect a business from “independent discovery.” Independent discovery is when a third party discovers, for example, the formula to a best-selling beverage, on its own.

On the other hand, trade secret protection usually does not terminate the way other types of intellectual property (such as patents) do. A patent only protects the inventor for a restricted period of time. A patent license might not be a good fit if the intention is to keep certain data about the creation a secret. In order to apply for a patent, intricate details about the device in question have to be revealed, and upon expiration, the information disclosed may become free for anyone to use.

An intellectual property attorney is capable of evaluating original works and counseling clients on the various types of protection afforded under intellectual property law. He or she will offer good advice about which type of protection best suits each individual situation.

]]>administratorhttp://www.abalawinfo.org/?p=5842016-08-25T19:56:45Z2016-08-25T19:56:45ZInventors have a right to protect their inventions through the United States Patent and Trademark Office (USPTO). With the creation of a device come a bundle of property rights issued by the United States Government. A patent prevents all “others from making, using, or selling the invention in the United States.” The patent may survive for varying periods of time, depending on what type of patent is applied for and issued. Typically, protection does not activate until the patent is legally granted.

Not all creations can be patented. Only a device that is “new, non-obvious and useful” may qualify for a “utility patent.” Abstract or theoretical concepts or ideas may not be protected by means of a patent. Likewise, an invention is not patentable if it has been “publically disclosed.” In order to determine this, patent searches should be conducted prior to filing an application. These searches may be very complex and an attorney’s instruction is advised.

Creations that cannot be approved under patent law may still be protectable through another method, such as trademark or copyright law. An intellectual property (IP) attorney can help advise clients about making the appropriate distinctions. An IP attorney is available not only to educate clients on the various application requirements for all types of intellectual property, but is prepared to provide provisional or non-provisional applications for patents. A non-provisional application establishes the filing date of the patent application, beginning the application process. A provisional application only establishes the filing date and automatically expires after one year.

If there is more than one person involved in the creation of an invention, the partners may need to file an application as “joint inventors.” Unfortunately, there are often disputes concerning which individual actually created the invention; sometime both parties claim to be the “sole inventor.” Usually, after thoroughly analyzing all the facts, the attorney(s) can determine whether one or both inventors have the right to file the patent or whether they should file jointly.

There are several fees involved in obtaining a patent license, including filing, issuance, and maintenance fees. An experienced IP attorney can inform clients of the timetable they will be responsible for, and clarify when various terms, such as “patent pending” or “patent applied for” are supposed to be used to keep the public updated regarding where the inventor is in the patent application process.